By Jonathan Bernstein / Bloomberg Opinion
A decision Monday by a federal judge granting former President Donald Trump’s request for an independent review by a “special master” of the FBI’s seizure of documents at Mar-a-Lago last month has prompted an unusually forceful backlash within the legal community. It isn’t just partisan analysts who are reacting with dismay; criticism of Judge Aileen Cannon’s decision has been widespread.
I’ll leave the specific ways that the decision fell short to legal specialists. But suffice to say there were a lot. The good news is that the judge’s decision has been so widely faulted that it could encourage media to resist the common temptation to hear out “both sides” of the argument when one side is so evidently flawed. The ruling also could motivate some Republican judges to shy away from hard-line decisions in order to avoid being labeled partisan; that is, nothing but apologists for their party and for Trump.
The “neutral” media — outlets that think of themselves as neutral, and try hard to have their coverage reflect that — have many real biases, and one of them is a strong inclination to treat conflicts between the two main political parties as having two reasonable sides that reasonable people differ on, with the media’s job being to present both sides equally.
Sometimes, a different tendency kicks in, a “mainstream” bias, in which one side is presented as clearly wrong. That bias is healthy as long as one side is actually wrong. It’s how media talk about politicians convicted of crimes, for example. The media also has adopted this framing in the coverage of the Jan. 6, 2021, attack on the Capitol. It’s what has allowed many neutral outlets to state plainly that Trump’s continued claims about the 2020 election are false, rather than describing the claims as contested.
But the tendency to assign equal weight to “both sides” is strong. For example, when President Joe Biden last week called out Trump and those who reject election results and use or threaten violence as threats to democracy, there was a strong inclination in media coverage to balance Biden’s measured words with Trump’s continued demonization of anyone who stands in his way.
What generally pushes the media to switch away from “both sides” is either validation from experts or, even better, from leaders of both political parties. If the signal from them is strong enough, it serves as permission to call something simply wrong or false. That’s one reason why former Attorney General William Barr’s comments last week defending the Federal Bureau of Investigation’s actions in the documents case received heavy coverage, even though he said nothing that plenty of experts hadn’t already stated.
The more that credentialed experts argue that Trump’s actions, and in this case the actions of a Trump-nominated judge, are truly extraordinary, the more it’s likely that the media will accept that framing in their reporting and reject the “both sides” temptation. And that, in turn, can matter to those voters who prefer Republican ideas on many public policy questions but also strongly support democracy and reject the Trump turn against the rule of law. Of course, this is only one case; but each bit helps.
It isn’t just about the media. Within the legal community, a strong reaction to Judge Cannon’s decision could have ripple effects. Some Republican judges are very comfortable with and may even seek out the scorn of the mainstream bar. But others will be much less willing to be seen as merely partisan hacks, and a strong public reaction to Judge Cannon’s decision could influence their own approach going forward.
I don’t want to overplay this; it isn’t as if even those Republican judges who care about such things will suddenly adopt the positions taken by Democratic judges. But we’ve seen Chief Justice John Roberts, despite being a very conservative judge, oppose extreme positions even if he likely agreed with the general direction. Others might do the same. There’s a difference, after all, between being a very conservative judge and just being partisan.
What’s more, if the reaction from the mainstream legal community is strong enough, it could push bar associations to be more aggressive about seeking sanctions on lawyers who (for example) file far-fetched lawsuits still challenging the 2020 election; and yes, that’s still going on.
None of this is guaranteed. But we shouldn’t dismiss the possibility of a significant and consequential backlash to Judge Cannon’s decision. A lot of lawyers care deeply about judicial standards and legal ethics, and that absolutely includes a lot of Republican lawyers and even Republican judges.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.
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